Senator says White House is trying to undermine FOIA law

By Dan Friedman

February 5, 2008

Weeks after agreeing on legislation to alter the Freedom of Information Act, the White House and Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., could be headed for a legal confrontation over fiscal 2009 budget language Leahy says attempts to quietly undo part of the bill.

In a paragraph improbably located in a portion of President Bush's fiscal 2009 budget dealing with the Commerce Department, the White House calls for shifting from the National Archives to the Justice Department funds for a FOIA oversight office created under the recently enacted law.

The Office of Government Information Services would house an ombudsman charged with reviewing agency policies, speeding up responses and mediating disputes involving FOIA.

Creation of the ombudsman is one of a series of steps required under the FOIA bill, signed Dec. 31 by President Bush.

But the plan to move the office has caused Leahy and groups advocating government transparency to charge the White House publicly agreed to the measure but then privately moved to scuttle it in a step comparable to the president's use of signing statements suggesting he may not be bound by portions of laws he approves.

"We strongly oppose this effort to use the budget process to undermine congressional intent and flout a specific statutory mandate," the National Security Archive, a nonprofit based at George Washington University, said in a draft letter to be distributed to Congress with other organizations.

In a statement Monday, Leahy said "the White House has shown they intend to act contrary to the intent of Congress," and said he would work through the appropriations process to ensure the National Archives gets funding for the information office.

The language in Bush's budget says the Justice Department will carry out "the responsibilities of the office" created in the bill. The language also says a portion of the FOIA bill dealing with new office "is hereby repealed."

Leahy called issuance of the language itself an effort to repeal part of FOIA law. But a Judiciary Committee aide said the provision would only take effect if Congress passed the budget with the section included.

Justice has long had responsibly over federal FOIA policy. But the bill put the new office outside the department because many advocates for stronger FOIA laws consider the department opposed to their efforts and less independent than the National Archives, in part because Justice also represents agencies sued by FOIA requestors.

Leahy aides have suggested the office would be essentially be eliminated if moved to Justice.

A Justice Department spokesman Monday said plans to move the office stem from the department's existing role of overseeing FOIA compliance.

"[Justice], in conjunction with OMB, has been the lead agency in encouraging agency compliance with the FOIA Executive Order issued by the President on December 14, 2005, which directed agencies to ensure citizen-centered and results-oriented agency FOIA operations," he said via e-mail.